This temp agency worker shows up at the same office every day. But his agency says he’s not a real employee

George Fawcett, 31, shows up to the same downtown bank office every day on a schedule set by supervisors who trained him and direct his daily activities. But according to the temporary employment agency that placed him there, he is not actually an employee — either of the agency or the bank.

It’s the subject of a recent complaint filed by Fawcett to the Ministry of Labour after realizing he was not receiving public holiday pay and vacation during his temp agency contract at a Toronto-based Scotiabank. And, he believes, it’s a growing problem in a precarious economy.

George Fawcett is a temp agency worker who believes he was misclassified as an independent contractor and therefore denied subsequent entitlements and protections under the law. (Vince Talotta / Toronto Star)

“I wasn’t sure about the law,” he says. “It wasn’t till I worked on Thanksgiving and someone told me they would just be paying (the) regular hourly rate, not even time-and-a-half that I thought, definitely something’s up here.”

When he approached his agency, he was told he wasn’t entitled to the additional wages because he was an independent contractor, a category of worker that has no protection under Ontario employment legislation.

How a worker is classified has significant implications. Independent contractors are responsible for paying their own taxes, and are not covered by the province’s Employment Standards Act that governs things like minimum wage or overtime.

Article Continued Below

That may be an appealing tradeoff for true independent contractors who are generally defined as people who are in business for themselves, stand to make a profit or loss as a result of their work, control the terms and conditions of their work, and have the power to sub-contract out some of the work to others.

An independent review of the province’s labour laws completed last year notes that businesses that misclassify employees as independent contractors often do so to “avoid the direct financial costs of compliance with the ESA and other legislation.”

“The experience of the Ministry of Labour in enforcement and significant anecdotal evidence suggests that a portion of ... ‘own-account self-employed’ workers are misclassified as they are actually employees but are treated by their employers as independent contractors,” the report says.

Fawcett has worked for a Scotiabank compliance team for almost a year through temp agency Finance Professionals Inc. He says he was trained and is managed by bank staff. He and his colleagues — around 11 of whom are also temps — use bank equipment and have regular schedules that are set by their manager.

When Fawcett tried to seek direct employment from Scotiabank, he says he was told the company was “used” to using the temp agencies it worked with, and that they were worried they may be charged a fee by the agency for hiring him directly.

When he tried switching temp agencies, Fawcett says he was told by Finance Professionals he could not do so.

“We have been notified by Scotiabank that you have approached them to extend your contract for service through an agency other than Finance Professionals Inc,” says an email to Fawcett from the agency’s director.

Article Continued Below

“I would like to notify you that such an action is a breach of your contract.”

Finance Professionals did not respond to the Star’s requests for comment. In a statement to the Star, Scotiabank spokesperson Rick Roth said the company was “committed to providing a rewarding and inclusive environment for our workforce and providing competitive rewards based on the skills and experience of the individual.”

“The bank also works with third-party vendors to fill short-term needs, including project-based assignments and to provide coverage during maternity leaves,” he added.

“We expect our third-party vendors to follow the law in their dealings with individuals, just as the bank does. Any information to the contrary would result in an internal review of the relationship.”

Deena Ladd of the Toronto-based Workers' Action Centre says there is a need for temp agencies and their clients to be jointly liable for all workplace rights, including employee misclassification. (Supplied Photo)

Deena Ladd of the Toronto-based Workers’ Action Centre says situations like Fawcett’s point to the need for temp agencies and their clients to be jointly liable for all workplace rights — including employee misclassification.

“Unless we ensure client companies are fully held responsible for all working conditions, wages and health and safety … it’s very easy for someone like Scotiabank to say, ‘it’s not my problem,’” she said.

“It should be their problem.”

Fawcett’s complaint is currently being investigated by the Ministry of Labour. Speaking in general terms, spokesperson Janet Deline said agencies are not allowed to stop temps from getting a job with a client company. Nor can agencies stop clients from directly hiring temp agency workers, although they can charge a fee if the client does so within the first six months of the temp’s placement.

Moreover, as a result of recently-passed legislation, Bill 148, when a dispute arises over whether someone is an employee or an independent contractor, the onus now falls on employers to prove they have not misclassified the worker.

As a result of legislative changes in 2014, temp agencies and their clients are now jointly liable for workers’ unpaid wages, overtime pay, and public holiday pay.

Last year, a Star investigation revealed how the use of temp agencies limits companies’ liability for accidents on the job, reduces their responsibility for employees’ rights and cuts costs. The number of temp agency offices opening across Ontario has increased by 20 per cent in the past decade and there are now more than 1,700 operating in the GTA alone, according to statistics obtained from the provincial workers’ compensation board.

Fawcett says he is generally happy with his work at Scotiabank and his options in the job market — unlike many workers who he feels face barriers in advocating for their rights.

That, he says, is why he wanted to speak up.

“I think it’s probably a widespread problem,” he said, “with agencies taking advantage of people’s need for a job, unfamiliarity with the ESA, and unwillingness to create conflict.”